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Under the spotlight: social media in the workplace

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The use of social media in the workplace has become a hot topic in employment law and in particular most recently in a headline grabbing case involving an HR manager (graduate and development manager) whose case of constructive dismissal is being heard at the Reading Employment Tribunal.

The case is thought to be the first in the UK where following the posting of professional details on LinkedIn, and instigation of disciplinary proceedings, an employee has claimed constructive dismissal. John Flexman claims that his former employer, gas firm BG group objected to content within his CV uploaded to his profile on the popular professional/social networking site LinkedIn.

The case has been widely reported that Flexman's former employers objected to him having ticked a box suggesting that he was interested in other 'career opportunities'. Additionally Flexman is alleged to have breached confidentiality by making references on the site in his CV about how he had reduced the rate of staff attrition. He is also alleged to have made derogatory comments in his CV including that the company had 'inadequate and ineffective global resource planning.'

In response Flexman claims that the details he cited were available in the company's annual reports and that 21 of his colleagues (including the manager of the disciplinary proceedings) had ticked 'career opportunities' box as well but had not been disciplined.

Flexman's case continues and whatever the rights and wrongs of his claim, (and he will have the burden of proving a repudiatory breach of contract) this case throws up wider issues regarding the growing use of social media in the workplace for employers. The proliferation of social media in the workplace (LinkedIn, Facebook, Twitter etc.) certainly has the potential for creating problems for employers unless they are properly covered by a comprehensive and effective social media policy. Whilst the advantages of social media abound, such as an inexpensive method of promotion enabling employees to engage with clients instantaneously and build familiarity and rapport, there are also disadvantages. The disadvantages include loss of control of company message, a blurring between work and private life and possible breaches of confidentiality.

The challenge for employers will be to utilise the benefits of social media whilst minimising the risks. This will be best achieved via a social media policy. A recent spate of litigation (for example Preece v Wetherspoon ET/2104806/10) involving employees dismissed for use of social media has only highlighted that those employers who possessed a sound social media policy were in a far stronger position defending dismissals. Those employees dismissed often raised privacy and free speech arguments such as under articles 8 and 10 under the Human Rights Act. In order to be effective against such arguments the policy should clearly inform employees what they can and cannot do and set out principles that guide usage of social media. The policy should refer to the disciplinary policy and should give some examples of what conduct could amount to disciplinary action or indeed dismissal.

Employers would be strongly advised to consult with their workforce in respect of implementing or updating an existing policy to deal with social media. Consultation will not only improve with awareness and knowledge of the policy and should ensure that the policy fits the type of work undertaken. What is suitable for a PR agency may not fit banking. By use of examples an employer may identify what is covered and also which sites if any are prohibited. An employer would be wise to stress personal responsibility for work and private usage. Employees should be encouraged to think prior to posting and to reflect before commenting. The policy should expressly prohibit defamatory, discriminatory, offensive or harassing posts or those that breached confidentiality or copyright.

An employer would also be advised to deal expressly with ownership of contact information on sites such as LinkedIn and whether or not work emails should be used on sites such as Twitter or Facebook. If monitoring is going to be a feature then it should be stated that usage during working hours will be monitored and there should be no expectation of privacy.

Elaine Banton is a barrister specialising in employment and discrimination law at 7 Bedford Row Chambers